Transcript Ivan Pearce and Kennedy Talbot Furnival Chambers 32

Mutual Legal Assistance
Kennedy Talbot
33 Chancery Lane
[email protected]
SOCA v Perry
• Perry convicted of serious fraud in Israel
• Perry in Israel; £12m in London bank
accounts
• Disclosure order made and notice sent to
Perry’s London house
• Perry challenge to jurisdiction of SOCA
officer to issue notice
Court of Appeal (Civil Division)
England
• Richards LJ – no jurisdiction – target of
notice must be in UK at time of issue or
thereafter
• Carnwath LJ – some limits to jurisdiction –
house in London, acknowledged by
solicitors - enough
• Ward LJ…..
“The purpose of the Act is to combat
cross-border unlawful conduct and I
cannot accept that the legislature
intended that [the authorities] should
engage in this battle against
international criminal activity with one
hand tied behind its back. If [an
officer] knows where the account
holder is, why cannot the appropriate
officer visit him abroad and ask him a
few direct questions?”
More Formal Arrangements –
History
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Territorial
Comity
Public matters
Civil Foreign Tribunals Evidence Act 1856
Treaties – 1959 European Convention –
1988 Vienna Convention – 1990 Strasbourg
Convention
Current
• Crime (International Cooperation) Act 1990
• Proceeds of Crime Act 2002 (External
Requests and Orders) Order 2003
General Principles
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Reciprocity
Specialty (Gooch; BOC v Barlow)
Costs and asset sharing
Confidentiality (Evans v SFO)
Requesting parties
Discretion and refusal to assist
Types of Assistance
• Examination of witnesses and production of
documents – evidence - compulsion and
exceptions
• Searches
• Confidential material / banking documents
• CIO / AMO
• SFO s.2
Practical Considerations
• Participation at examinations
• Challenges to procedures – admissibility –
JR – Abuse (Zardari)
• LPP and self - incrimination
Restraint and Confiscation
• Investigation
• Extent of restraint – location of assets
(King)
• Legal expenses
• Investigation of merits and human rights
(Al Zahat / Montgomery (no 2))
• Disclosure (Stanford)
Confiscation
• Registration and enforcement
• Procedural defences
• Rights of innocent third parties (Art. 46)
and victims (Re D, 19th March 2010, HC)
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SOCA v Perry [2010] Civ 907
Gooch [1991] 1 Cr App R(S) 183
BOC v Barlow [2001] EWCA Civ 854
Govt of USA v Montgomery (no 2) [2004] 1 WLR
2241
Finnivest [1997] 1 WLR 743
Zardari (29th April 1998) DC
King v SFO [2009] 1 WLR 718
Al Zahat [2008] Lloyds Rep 390
Stanford v SFO [2010] EWCA Civ 137
Re D [2010] March 19th
Evans v SFO [2003] 1 WLR 299